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Madhya Pradesh High Court · body

2006 DIGILAW 1006 (MP)

Tulsabai v. Sadhu Singh

2006-08-23

RAJENDRA MENON

body2006
ORDER 1. This is claimants' appeal under section 173 of the Motor Vehicles Act, 1988 being aggrieved by the award dated 18th August, 2000 passed by IX Motor Accidents Claims Tribunal, Gwalior, in Claim Case No. 49 of 1999 rejecting an application for claim filed by the claimants only on the ground that the vehicle which was involved in the accident is not proved. 2. Claimants herein are wife and son of one Ramgopal who had died in the accident. Ramgopal was going on a cycle on 4th February, 1997 on Race Course Road, Gwalior, when he reached a spot near Gola ka Mandir, it is said that a tractor along with trolley came from behind and dashed on the cycle of Ram Gopal as a result thereof he died on the spot. Initially when the first information report Exhibit P-1, with regard to the aforesaid accident was lodged on the same day by Rajendra Kumar (PW1) son of the deceased, number of the tractor involved in the accident was mentioned in UAC 8378. Claim application was filed seeking compensation to the tune of Rs.10,25,000/-. The tractor was not insured, and therefore, the owner and driver of the tractor were proceeded against. The owner and driver, i.e., respondents No.1 and 2 herein submitted that the tractor which is owned by the respondent No.1 bears number UAC 8328 and as the tractor in question involved is said to be UAC 8378, they are not liable to pay any compensation. The matter was put to trial and on the basis of the evidence that came on record, the Tribunal found that the claimants are entitled to the compensation of Rs.l,39,500/- (Rupees one lac thirty nine thousand five hundred only) in all but as the tractor involved in the accident was tractor No. UAC 8378 and not tractor UAC-8328 which is owned by the respondent No.1, the claim application was dismissed. 3. Shri B.K. Agarwal, learned counsel appearing for the appellants, submitted that in the present case merely because of a minor mistake in indicating the number of the tractor, the entire claim petition has been dismissed. 3. Shri B.K. Agarwal, learned counsel appearing for the appellants, submitted that in the present case merely because of a minor mistake in indicating the number of the tractor, the entire claim petition has been dismissed. He submitted that even though in the first information report Exhibit P-l, the number of the vehicle was shown as "8378" but in the P-6, the number of the tractor was shown as "8328" and similarly in the giraftari panchnama, Exhibit P-5 and supurdginam, (Ex.P-4), the number is shown as "8328". It was submitted by Shri Agarwal that merely on the basis of a small error in mentioning the figure "7" and "2", the claim application of the claimants has been dismissed ignoring all other circumstances that were existing in the matter. 4. Placing reliance on a judgment of the Supreme Court in the case of N.K.V. Bros. (P) Ltd. v. M. Karumai Ammai and others [ AIR 1980 SC 1354 ], and indicating the approach to be adopted in such cases as laid down in paragraph 3 thereof, so also placing reliance on two judgments of this Court in the case of Diwakar Shukla and three others v. Ashok Thakur and two others [2006(II) MPJR SN 8] and Smt. Sangeeta Kalanki and others v. Abdul Latif and others [2006(II) MPJR SN 35], Shri Agarwal, learned counsel for the appellants, argues that in the facts and circumstances of the present case, taking a very strict and hyper technical view was not warranted. It was pointed out by him that even though originally in the claim petition, the claimants have mentioned the number of the tractor as 8378 but they have moved an application for amendment which was rejected by the Tribunal. Taking me through the evidence available on record, it is argued that this is a fit case where the compensation determined by the Tribunal should be directed to be paid to the claimants. 5. Taking me through the evidence available on record, it is argued that this is a fit case where the compensation determined by the Tribunal should be directed to be paid to the claimants. 5. Refuting the contention advanced by Shri Agarwal learned counsel for the appellants, Shri Ajit Jain, learned counsel appearing for the owner and driver of the vehicle, the respondents No.1 and 2, taking me through the pleadings made by the claimants in their claim application under section 166 of the Act submitted that even if it is assumed that in the first information report and the other documents prepared by the police there is some error in entering the number of the tractor but in the claim application it is the specific case of the claimants that the deceased Ramgopal sustained injury when he was hit by tractor No. UAC-8378. Emphasising the aforesaid factual aspect of the matter, it was submitted by Shri Ajit Jain that in such circumstances, when the claimants themselves came out with a case that the tractor involved in the accident was UAC-8378, the learned Tribunal has not committed any error in rejecting the claim application of the claimants. 6. Placing reliance on the following judgments, Shri Ajit Jain, learned counsel for the respondents No.1 and 2 emphasised that when the vehicle involved in the accident is not proved or established by cogent evidence, rejection of the claim application of the claimants does not warrant any interference. (1) MPSRTC and others v. Madhukar Tiwari and others [1997 (2) TAC 169 (Raj.)] and (2) United India Insurance Co. v. Rajnarayan [1986 (I) MPWN 204]. 7. I have heard learned counsel for the parties at length and perused the record. 8. Before adverting to analyse the question involved in this appeal on the basis of the evidence and other material available on record, it would be appropriate to take note of certain observations made by the Supreme Court in the case of N.K. V. Bros. (P.) Ltd. (supra), relied upon by Shri B.K. Agarwal, learned counsel for the appellants. In paragraph 3 of the aforesaid judgment, the duties of the Accidents Tribunals and the procedure to be adopted in such cases are indicated in the following terms: "Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. In paragraph 3 of the aforesaid judgment, the duties of the Accidents Tribunals and the procedure to be adopted in such cases are indicated in the following terms: "Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the Courts, as has been observed by us earlier in other case, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The Court should not succumb to niceties, technicalities and mystic may-bes. We are emphasising this aspect because we are often distressed by transport operators getting away with in thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour". Indeed, the State must seriously consider no-fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practiced by Tribunals. We must remember that judicial Tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accident disablement of citizens. There is no justification for niggardliness in compensation...." (emphasis supplied) 9. It is in the back drop of the aforesaid observations made by the Supreme Court that the facts in the present case are required to be analysed. 10. The accident is said to have been taken place at 8 a.m. in the morning and when the accident took place, along with deceased Ramgopal, two other persons were going in the cycle. They are Bhagwan das (PW 2) and Pramod (PW 3). Both these witnesses along with Ramgopal (deceased) and Rajendra Kumar (PW 1), son of the deceased and one Suresh were going to Shatabdipuram for doing their work. In his statement, Bhagwan Das (PW 2) has categorically stated that the tractor involved in the accident was UAC 8328. They are Bhagwan das (PW 2) and Pramod (PW 3). Both these witnesses along with Ramgopal (deceased) and Rajendra Kumar (PW 1), son of the deceased and one Suresh were going to Shatabdipuram for doing their work. In his statement, Bhagwan Das (PW 2) has categorically stated that the tractor involved in the accident was UAC 8328. Thereafter in paragraphs 2 and 3 of the examination-in-chief, this witness has stated that the tractor came behind and hit on the cycle. This witness stated that the driver of the tractor left the tractor on the spot and ran away. After some time, police from the Police Station Gola ka Mandir came and seized the tractor. The aforesaid statement of Bhagwan Das is corroborated by the statements of the other two witnesses Rajendra Kumar (PW 1) and Pramod (PW 3). In his cross-examination in para 6 specific question was put to this witness with regard to the accident in question and number of the tractor. This witness has clearly stated that when the accident took place, the number plate of the tractor was not clear, there was mud and there was some confusion with regard to figure "2" and "7" written in the number plate. In the FIR (Ex.P-l), the number of the tractor is shown as 8378 and in the seizure memo, it is shown as 8328. However, there are some discrepancies in the number shown in the documents prepared by the police. In the FIR (Ex.P-l) and in the site map (Ex.P-2), the number is shown as 8378 whereas in the giraftari panchnama (Ex.P-5) and seizure memo (Ex.P-6) it is shown as 8328. Even though in Ex.P-6 there are some overwritings, the learned Tribunal has emphasised very much on this aspect of the matter and finding discrepancies in number of the vehicle and taking note of the fact that in the claim application the number of the vehicle is shown as 8378, dismissed the application for claim. This approach of the Tribunal is wholly improper and erroneous. Even if in the documents prepared by the police like FIR, seizure memo and other documents, there are some discrepancies, it is the considered view of this Court that the same is immaterial, when certain factual aspect of the matter is analysed. This approach of the Tribunal is wholly improper and erroneous. Even if in the documents prepared by the police like FIR, seizure memo and other documents, there are some discrepancies, it is the considered view of this Court that the same is immaterial, when certain factual aspect of the matter is analysed. One glaring fact which is lost sight of by the Tribunal is that as per the eye witness account of PW 1 to PW3, the tractor in question was driven rashly and negligently and dashed on the cycle from behind, it is the statement of the witnesses that the driver left the tractor and ran away. It may be taken note of that the tractor was seized by the police from the spot itself immediately after the accident and the tractor was released as per orders of the Court on supurdgi to respondent No.1. It is a fact that the tractor in question was seized from the spot and the same was released on supurdgi to the respondent No.1 and as it is established that the tractor which was seized from the spot was the one which was involved in the accident and the said tractor belonged to respondent No.1. This important aspect of the matter has to be taken into consideration. That apart, merely because there is a minor difference in the indication of the tractor number which may be because of the confusion in similarity of the figure "2" and "7", and the fact that the number plate of the tractor was not properly visible due to mud on it cannot be ruled out. Even in the case of Smt. Sangeeta (supra), relied upon by Shri B.K. Agrawal, learned counsel for the appellants, a minor difference in the number of the vehicle as recorded in the FIR was directed to be ignored by the Division Bench of this Court. Even in the case of Smt. Sangeeta (supra), relied upon by Shri B.K. Agrawal, learned counsel for the appellants, a minor difference in the number of the vehicle as recorded in the FIR was directed to be ignored by the Division Bench of this Court. Keeping in view all the facts and circumstances of the case and taking note of the evidence that has come on record, I am of the considered view that the oral evidence which has come on record clearly indicates that the tractor which was released to respondent No.1 on supurdgi was the tractor which was seized from the place of the accident and even if there are some discrepancies, minor in nature, in recording the number of tractor by the police authorities in various documents, the same has to be ignored and a finding has to be recorded that the tractor in question which was released to respondent No.1 on supurdgi being UAC 8328 was the one involved in the accident and the respondent No.1 was liable to pay the compensation to the claimants. Even though Dharmveer Singh (DW1), respondent No.2 driver of the vehicle in the evidence had tried to state that the tractor reached the spot of the accident at about 12 in the afternoon and the police had seized the vehicle after 12 in the afternoon, this fact is not corroborated by the independent evidence. No other witness is examined except the driver to show that the tractor in question left for Gwalior from the village only after 8 or 9 in the morning and reached the spot of the accident between 12 to 1 in the afternoon. The statement of Dharmveer Singh (DW l) is falsified from a combined reading of the statement of other witnesses who have categorically stated that after the accident, driver left the tractor and ran away. That being so, the defence put by the defendants cannot be accepted in the absence of independent corroborative evidence. 11. Considering the facts and circumstances of the case, it is held that the Tribunal has committed grave error in dismissing the claim application of the claimants. 12. Accordingly, by holding that the tractor in question UAC 8328 was involved in the accident and the claimants are entitled to compensation awarded by the Tribunal, this appeal is allowed. 13. 11. Considering the facts and circumstances of the case, it is held that the Tribunal has committed grave error in dismissing the claim application of the claimants. 12. Accordingly, by holding that the tractor in question UAC 8328 was involved in the accident and the claimants are entitled to compensation awarded by the Tribunal, this appeal is allowed. 13. Respondents No.1 and 2 are held to be jointly and severally responsible for payment of compensation Rs.1,39,000/-(Rupees one lac thirtynine thousand only) awarded by the Tribunal with interest at the rate of 6% per annum from the date of the application till payment. 14. Accordingly, appeal stands allowed and disposed of with the aforesaid.